Sassa and former CEO ordered to foot legal bill‚ Dlamini off the hook
The Constitutional Court has ruled that the SA Social Security Agency (Sassa) and its former acting CEO Pearl Bhengu, in her official capacity, must pay the costs for the urgent application in February to extend the controversial social grants payment contract with CPS.
In its ruling on Thursday, the court held that former social development minister Bathabile Dlamini and Bhengu were not personally liable to pay the costs of the application from their own pockets.
“In her written submissions, the minister contended that to hold her personally liable for costs would constitute an impermissible encroachment on the power of the other arms of government," the court said in its judgment.
“She submitted that this court lacks authority to hold a minister to account by ordering her or him to pay costs out of her or his pocket. There is no merit in this argument.”
The court further expressed its view on whether Dlamini and Bhengu acted in bad faith or negligence in conducting the litigation or in the performance of their constitutional functions.
It said shortly after her appointment, Bhengu approached the National Treasury for approval of the appointment of South African Post Office (Sapo) as the service provider to replace CPS. Once approval was obtained, a proposal was solicited from Sapo.
The court added that it was during the evaluation of this proposal that it became clear that Sapo lacked the capacity to provide the service of paying social grants in cash.
“Although Sassa became aware of this shortcoming in September 2017, it was only in mid-December 2017 that steps were taken to put the service to open tender. But this was advertised in January 2018. This application was lodged on February 6 2018 as a matter of urgency.
“As stated, the urgency [of the application] relied on was self-created and the explanation furnished for the delay in approaching this court was not satisfactory. But the unsatisfactory explanation falls short of gross negligence or bad faith which would warrant a personal costs order,” the court said.
In February 2018, Sassa and Bhengu approached the Constitutional Court on what they said was an urgent basis over social grants that needed paid in cash. Those social grants reached about 2.8-million grant recipients at the time.
They asked the court for an extension, lifting the invalidity of the contract with CPS that the Constitutional Court had found to be invalid.
This was to help Sassa, through CPS, continue paying these social grants for six months because the agency and Sapo did not have the capacity to do so. At the time, Sassa could not tender for a new service provider to pay social grants in cash as the government tender window was closed over the holiday season.
The court heard the Sassa application and handed down an order on March 23 2018 without giving reasons.